Elian: Curiouser and curiouser

The late Alan Bock was author of "Ambush at Ruby Ridge" and "Waiting to Inhale: The Politics of Medical Marijuana." He was senior editorial writer and columnist at the Orange County Register and a contributing editor at Liberty magazine.

My preference, as
I explained some weeks ago, would have been for young Elian to have been treated like any other unaccompanied minor who came into the country under similar circumstances. That would have meant the father would have been the first choice to have custody of a child so young whose mother had died, absent strong evidence of systematic abuse or something of the like to override the claim.

And it should have been handled quickly, with little in the way of fuss or feathers. Rule of law, traditional understanding of justice, with the emphasis on following normal rules rather than trying to dictate the outcome and all that, understanding that evidence turned up in court, special circumstances or old laws referring to Cuba might end up trumping the ordinary.

But that was not to be.
As Eric Fettman in the New York Post has reminded us this week, the first impulse of administration spokesmen was to greet the Elian phenomenon with triumphalist anti-Castro rhetoric of a sort that would have made the Cuban American National Foundation blush. Until Castro started whining and organizing demonstrations and dropping less than subtle hints about how a legacy could crash on the shoals.

Soon enough the administration was using the language of “the rule of law” to justify its preferred outcome: which was whatever pleased Castro. Still, I went along, figuring that even a hypocritical reference to the rule of law would at least reinforce that valuable but perpetually battered concept.

But the predawn storm trooper raid last Saturday made such a mockery of the concept of the rule of law, even as it demonstrated once again the inordinate fondness of this administration for paramilitary displays of overwhelming force, for vicious actions calculated to terrorize ordinary American citizens, that like many Americans I lost patience. Even if all the legal documents were in order on behalf of doing the right thing, and even if Janet Reno were telling the truth about the intransigence and position-shifting of the Miami Gonzalez family, there was simply no excuse for such overwhelming force – except perhaps to make a conspicuous display of who’s boss, a thoroughly contemptible purpose that should make any decent person suspicious.

And as facts come out, the matter gets curiouser and curiouser. As those of us who have observed the administration had suspected, Janet Reno was lying, not telling the truth about the Gonzalez family. She was the one who had pulled the double-cross and continued to pretend to negotiate even as she was giving the order for an overwhelming show of military-style force.

Well, figured a few of us who were struggling to hang onto some scrap of hope, at least the photo of that uniformed thug pointing an automatic weapon at a frightened Elian might remind a few Americans that the notion of a heavily armed bunch of government law enforcement types and a disarmed population might not be healthy for children and other living things. And although they may have stretched legal procedures to set up this thoroughly unjustified assault and kidnapping, at least they seem to have dotted the proper legal i’s and crossed the appropriate judicial t’s.

Sure, the real reason for the snatch was undoubtedly to remove the boy from the influence of the Miami relatives and place him under the influence of the father before the 11th Circuit appeals court heard the appeal of the district court’s denial of Elian’s request for asylum. Perhaps the father could even talk the boy out of it before the court date, which would make the appeal moot and the administration triumphant. But surely these people are competent lawyers who would know how to undertake all the proper legal paperwork.

But even that turns out to be untrue, as I should have known considering the long record of instinctive inclination toward criminality this administration has established. As Andrew Napolitano, a former judge who teaches at Seton Hall University, explained in Wednesday’s Wall Street Journal, virtually everything about the legal aspects of the kidnapping was dishonest, sneaky, probably unconstitutional and more than likely outright illegal.

First was the matter of getting the warrant. Instead of going to Michael Moore, the district judge who has been handling the case and is familiar with it, the government “waited until after 7 p.m. on Good Friday, when a federal duty magistrate, not familiar with the case and notoriously pro-government in his rulings, was available to hear warrant applications,” as Judge Napolitano put it. The affidavit for the warrant was full of misrepresentations and untruths, saying Elian was being “concealed” at Lazaro’s house and “unlawfully restrained” there and that the INS Deputy Director had ordered the boy arrested as an “illegal alien.”

The affidavit left out notable facts. There was nothing in it of the justification Janet Reno later used, that it was suspected that guns were in the house, for the overwhelming force and tear gas. Nor did the affidavit mention that Aaron Podhurst, a highly respected Miami lawyer and longtime friend of Ms. Reno, was feverishly mediating negotiations between lawyers for the government, Elian’s father and Lazaro Gonzalez even as the affidavit was being filed.

Furthermore, Napolitano says that according to Miami attorney Richard Sharpstein, “the INS never arrests Cuban aliens without evidence that they have committed a crime.” So there was nothing normal, ordinary or even remotely honest about any aspect of the way this kidnapping was done. As Napolitano put it, “just a simple court order, sought with notice to Elian’s lawyers, could have peacefully transferred custody.”

There’s also the fact that the federal government didn’t start talking about the possibility of a forcible seizure until the 11th Circuit decided last week, in a decision generally interpreted as an admonition to the government to temper its eagerness to get the transfer made at any cost and as quickly as possible, that Elian should not leave the country until the court decided the asylum case. So when the possibility that the administration just might lose in court presented itself, this administration immediately began looking about for ways to get what it wanted before it could be stymied by a court.

Rule of law, indeed.

Just to confirm its essential thuggishness, contempt for law and abiding desire to avoid accountability, the first agent to enter the Gonzalez home kicked, maced and assaulted an NBC cameraman, trying to make sure there would be no video footage of the vandal-like ransacking and trashing of the house. If AP stringer Alan Diaz had not been hiding in the bedroom, the world would probably not have known — except for the teargas sprayed on women outside the home — just how brutal the business end of government can be.

And does anybody doubt that if the picture had not been taken, we would have been told that the “transfer into proper custody” was effected peacefully and according to the book? Any protestations to the contrary by the family would have been dismissed as the perhaps understandable but paranoid and exaggerated perspective of a family frustrated by the lawful thwarting of its evil intentions of keeping the boy forever in defiance of the sacred rule of law.

As Joe McNamara, former police chief of San Jose and now a fellow at the Hoover Institution at Stanford told me, “The final irony is that congressional Republicans, who for years have been urging the feds to encourage local cops as well as the feds to increase the number of times cops use similarly overwhelming and unnecessary force in drug busts, are now shocked — deeply shocked.”

If there is a larger lesson to be absorbed here, it is that the militarization of law enforcement in the United States is now virtually complete. As a recent article in
Covert Action Quarterly, full of facts and reliable references despite occasional overwrought leftist rhetoric, explains, 62 people died at the hands of police in 1990, while in the first nine months of 1998 the number had grown to 205. There has been a 500 percent growth in the activities of police paramilitary SWAT-type units, explicitly modeled on the military’s Special Forces units, across the country since 1980.

In the last chapter of my Ruby Ridge book a few years ago, I documented dozens of similar incidents of overwhelming and probably unjustifiable use of force against civilians by federal law enforcement agencies. Federal officers now constitute more than 10 percent of the law enforcement personnel in the country and agents of more than 70 federal departments are authorized to carry weapons (including the Food and Drug Administration, for heaven’s sake), leading to numerous cases of abuse.

The federal government has also subsidized and encouraged, often quite directly, the militarization of local police through programs like “Technology Transfer from Defense: Concealed Weapons Detection,” designed in part to get around pesky Fourth Amendment limitations. The Department of Justice and the Department of Defense have numerous reasonably open programs of cooperation and training.

Increasingly, police in news photographs look more like the armored and heavily armed thug who terrorized Elian and the Gonzalez family than like the reasonably friendly cops of my childhood — which makes them appear (and act) more like minions of an occupying army than like peace officers in a free republic.

Nearly half of the hundreds of paramilitary police units in the U.S. have been directly trained by active duty military experts in special operations. With slogans like “We own the night” and tee shirts bearing macho slogans about hunting and killing, some police units are virtually indistinguishable from the criminal gangs they are purported to oppose. The recent revelations about the Rampart Division in the LAPD, planting false evidence and beating people up without justification, are in all likelihood merely the tip of the iceberg.

The “war on drugs” is the major justification for such militarization of law enforcement, but it has served as a wedge to justify increasingly aggressive paramilitary-style activities in all areas of law enforcement. The Posse Comitatus act, which sought to prevent the military from being used for civilian law enforcement, is virtually a dead letter. Not only have widespread exceptions been made when even a tenuous connection to the war on drugs could be established, local police forces increasingly look like the military, think like a military force and, often enough, have been trained by the military,

If the kidnapping of Elian Gonzalez makes Americans more aware of the militarization of law enforcement at every level and determined to do something about it, some good may come out of it after all.